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Barbera calls for review of witness-identification guidelines

Chief judge notes 'potential fallability' of identification

Maryland’s top judge called Monday on the state’s judiciary to consider easing its outdated deference to eyewitnesses’ identification of criminal defendants, saying research and other states’ courts have found such testimony is often flawed regardless of how certain the witness might be.

Court of Appeals Chief Judge Mary Ellen Barbera said the state’s jurists have relied for too long on a test of eyewitness reliability that has been largely debunked by recent social science research, which considers the effect that stress, disorientation and media accounts have on a witness’s memory.

“I await the day – which cannot come too soon – when this court, prompted by the research on potential fallibility of eyewitness identification evidence, takes meaningful steps to improve Maryland’s pretrial and trial-related procedures, so as to mitigate, if not eliminate, the present concerns that attend the admission of, and weight given to, such evidence in future cases,” Barbera stated.

The chief judge issued her call for change in a concurring opinion to a Court of Appeals decision that relied on what she said was the current, but flawed, framework for assessing an eyewitness’ reliability. The high court upheld the eyewitness’ controversial identification of his assailant as reliable in upholding a conviction for attempted robbery and related offenses.

In agreeing with the high court’s conclusion, Barbera said that she wrote separately to express her “disappointment in the court’s unwillingness to consider seriously, and act upon, the research that currently informs the many vagaries of eyewitness identification.”

“In doing so, the court has missed an opportunity to join the growing number of state supreme courts that recognize and are reacting to the serious due process concerns attending eyewitness identifications,” Barbera wrote in the concurrence joined by Judges Robert N. McDonald and Sally D. Adkins, a retired jurist sitting by special assignment.

“We should follow the path blazed by our sister supreme courts and act upon the research,” Barbera added. “We should not persist in wholesale reliance on an archaic test based on seemingly logical assumptions that have since been refuted.”

The outdated but still used eyewitness-reliability test considers the witness’ opportunity to see the suspect, level of attention, accuracy of description, certainty of identification and time span between the crime and identification, Barbera said.

But research has shown that variables alter the accuracy of identifications, such as the witness’ stress during the crime, whether a weapon might have distracted the witness’ focus and whether other witnesses or newspaper accounts affected the witness’ memory, Barbera said.

The old test is based on the U.S. Supreme Court’s 1972 decision in Neil v. Biggers and its 1977 ruling in Manson v. Brathwaite, as adopted by the Court of Appeals in Jones v. State about 11 years later.

But those decisions predated scientific studies regarding the formation, storage and recall of memory, Barbera said.

“We should be dismayed that the assumptions of the Supreme Court justices in 1972, however well-intended, still govern the way we in 2019 decide whether an identification is reliable,” Barbera wrote.

“Research studies virtually unanimously indicate that, despite an eyewitness’s belief that his or her identification is accurate, there is no statistically significant correlation between certainty and accuracy,” she added. “We ought not be bound by precedent where it incorporates disproven assumptions or premises about the reliability of memory.”

These studies, the chief judge added, were summarized in a friend-of-the-court brief submitted in the case by The Innocence Project Inc. and the University of Baltimore School of Law’s Innocence Project Clinic, which challenged the reliability of eyewitness testimony when other evidence indicates a convict might actually be innocent.

Barbera urged her high court colleagues to join her in directing the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure to propose standards that “bring scientific rigor to the assessment of an eyewitness identification that a defendant has challenged as unduly suggestive and, ultimately, unreliable.”

In addition, the Standing Committee on Maryland Pattern Jury Instructions’ Criminal Subcommittee should create an instruction that better guides jurors on the reliability of eyewitness testimony, Barbera wrote in the concurrence.

In the underlying case, convict Malik Small argued on appeal that his victim, Ellis Lee, had identified him as the perpetrator in two photo arrays that were unduly – and unconstitutionally — suggestive because he was the only person whose photograph was in both arrays and the only person who had a neck tattoo.

The high court agreed that the second photograph was suggestive but said any improper suggestion was trumped by the reliability of Lee’s identification based on the totality of the circumstances. These circumstances included Lee’s testimony that he had seen Small twice prior to the attack; that the attack had lasted two minutes, providing Lee another opportunity to see him; and that Lee, independent of the photographs, had correctly described Small as his assailant by race, height, build, haircut, dress and tattoo, the court said.

Lee’s eyewitness identification of Small “had sufficient indicia of reliability to overcome the taint of that suggestiveness,” Judge Clayton Greene Jr. wrote in the court’s majority opinion.

The opinion was joined by Judges Shirley M. Watts, Michele D. Hotten and Joseph M. Getty.

The Court of Appeals issued its decision in Malik Small v. State of Maryland, No. 19, September Term 2018.

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